3. Commencing proceedings
Issue One: Which Court / District
Which Court:
1. Supreme Court2. District Court (if below $250,000)
3. Magistrate’s Court (if below $50,000)
Where to Commence:
Supreme Court§ any central registry of the court r. 33
Generally
The appropriate district is determined according to:
§ the residence or place of business of the defendants/respondents; or
§ any district to which the defendant/respondent have agreed in writing; or
§ the district in which the defendant/respondent had undertaken in writing to pay a debt or other matter; or
§ the district in which all or part of the claim or cause of action arose
r. 35
Objecting to District:
§ in all courts a def/respondent can object to proceedings being started in an incorrect district. r.39
§ Note that any objection to district is not an objection to jurisdiction,
§ If Claim: must be included in the notice to defend r. 39(1)(a)
§ Other Proceeding: by application for dismissal of the proceeding r.39(1)(b)
§ The objection is taken to be an application
Can the Court object?
If the def/resp. does not object the court cannot, on its own initiative decide that the proceeding should have been started in another district. r.39(2)
Issue Two: Claim or Application?
A proceedings starts when the originating process is issued by the Court – s.8(1).Issue: should a claim or an application be used to start proceedings?
§ A claim is for factual disputes that are intended to go to trial. Where a claim is filed, the rules of pleadings and disclosure will automatically apply.
§ An application allows faster access to the courts and is to be used where the fact-finding tool associated with a trial are not necessary. Application are appropriate for disputes as to the law.
According to r. 9 proceedings must be started by a claim unless the rules permit or require it to be started by application.
Application Required?
§ An application is required where an act does not specify the type of originating process to be used or where something other than a claim is specified r.10
Horne v Frank
§ application under s245 Police Powers and Responsibility Act which permits an officer to apply to a magistrate for an order regarding ownership of an item
§ Held: r.10 applied
Application Permitted?
§ An application is permitted where
° the main issue is one of law and a substantial dispute of fact is unlikely
° there is no opposing party, or it is not intended to serve any person with the originating process
° there is insufficient time to prepare a claim because of the urgent nature of the relief sought
r. 11
Baggott v Whafflm
§ appropriateness of proceeding by way of application under s.11 was doubted in an application for declarations.
§ However as the amount disputed was small (less than $20,000) the parties agreed to proceed with contesting any issues of fact.
Permanent Trustee v Jibali
§ application seeking possession of land was allowed
§ no substantial dispute of fact was involved.
Issue: what is proceedings are incorrectly started by a claim/application?
If Claim: The court may order that the proceedings continue as if started by application; r.13.
If Application: where proceedings incorrectly started by application the court may order that the proceeding continue as if started by claim; r. 14.
Claim
A claim must be in the approved form r. 22(1). The court has a wide power to set aside the originating process or service of it under r.16(e) and (f).Issue: have the requirements of r.22 been fulfilled?
1. A claim must state briefly the nature of the claim made or relief sought;
2. A claim must attach a statement of claim to the claim è go to Pleadings notes.
3. the claim and attachment must be filed and then served on each defendant è go to service notes
Issue: What form is required?
Form 2 is required for claims.
Issue: Format of Court Documents:
° A4 size paper
° white or cream in colour
° good and durable quality
° is free from discoloration or blemishes
° have all it pages securely bound
° have clear margines no smaller than 10mm etc (Rule 961)
Dates, amounts and numbers may be stated in figures (Rule 962)
Non-compliance
Substantial compliance with an approved form is sufficient pursuant to the AIA s49(1), however note Capewell v Seltino: a write which is in the wrong form or does not contain the appropriate endorsements should be refused.
Wrong Form:
Where proceedings are stated in the wrong form the court may order that the proceedings continue as if they ahs been commenced in the correct form, and make any further directions or orders appropriate for the further conduct of the proceedings (r13, 14).
Application
An application must be in the approved form r.26(1). The court has a wide power to set aside the originating process or service of it under r.16(e) and (f).Issue: have the requirements of r.26 been fulfilled?
1. Name as respondents all person directly affect by the relief sought
2. list affidavits to be relied on
3. specify the orders or other relief sought
4. name and section of the Act, if made under an Act
5. specify the date set for hearing the application
Form of Documents:
An application commencing proceedings is in Form 5.
Issue: Format of Court Documents:
° A4 size paper
° white or cream in colour
° good and durable quality
° is free from discoloration or blemishes
° have all it pages securely bound
° have clear margines no smaller than 10mm etc (Rule 961)
Dates, amounts and numbers may be stated in figures (Rule 962)
Non-compliance
Substantial compliance with an approved form is sufficient pursuant to the AIA s49(1), however note Capewell v Seltino: a write which is in the wrong form or does not contain the appropriate endorsements should be refused.
Wrong Form:
§ Where proceedings are stated in the wrong form the court may order that the proceedings continue as if they ahs been commenced in the correct form, and make any further directions or orders appropriate for the further conduct of the proceedings (r13, 14).
Issue Three: How should the parties be described?
§ Corporations – add ACN§ Partnerships – can sue r. 83(2), but note r. 85
§ Registered Business – r. 89
§ Unregistered Business –
° r. 90 : proceedings may be started in the name or style under which the person carrier on a business
° but note 91 ==> see notice of intention to defend.
° also note r.92: the plaintiff/applicant must as soon as practicable take all reasonable steps to find out the name of the person carrying on the business under the name or style in question.
Issue Four: Filing Proceedings
A document may be filed by:(a) personal delivery; r.968(1)
(b) post; r969(1)
Issue Five: Stale Proceedings
When is a claim in force?1. A claim remains in force for 1 year starting on the day it is filed.
To Renew:
1. If it is not served within that period, the registrar may renew it for further periods of not more than 1 year at a time, starting on the day after the day on which the claim would otherwise end.
2. After five year from the originating filing date, the court leave must be obtained; r24
3. to succeed in an application for renewal, reasonable efforts must have been made to service the def. or the pl. need to provide another good reason; r24(2).
Van Leer v Palace Shipping
§ The principle to be considered when deciding whether a good reason will be potential prejudice that would be suffered by the defendant if leave was granted.
Served outside 12 month period
1. the originating process does not become a nullity, however the defendant is entitled to ignore its service as ineffective.
2. If the defendant enters an unconditional notice of intention to defend to a stale claim, then on common law principles that could constitute a step in the action and amount to a waiver of the irregularity; Sheldon v Brown Bayley’s.
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